Calthorpe v. Abrahamson

• Decision Date: 12 February 1982
• Citation: 441 A.2d 284
• Parties: William A. CALTHORPE, Mona M. Calthorpe, Joseph H. McLellan and Catherine M. McLellan v. Ernest P. ABRAHAMSON, Jane S. Abrahamson, Manley A. Dyer and Fannie G. Dyer.
• Court: Maine Supreme Court

Page 284

441 A.2d 284

William A. CALTHORPE, Mona M. Calthorpe, Joseph H. McLellan and Catherine M. McLellan v. Ernest P. ABRAHAMSON, Jane S. Abrahamson, Manley A. Dyer and Fannie G. Dyer.

Supreme Judicial Court of Maine.

Argued Jan. 4, 1982.

Decided Feb. 12, 1982.

Drummond, Woodsum, Plimpton & MacMahon, P.A., John A. Graustein (orally), Richard A. Spencer, Portland, for plaintiff.

Robinson & Kriger, P.A., Robert C. Robinson (orally), Portland, for defendant.

Before McKUSICK, C. J., GODFREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.

WATHEN, Justice.

Plaintiffs in this case, Joseph and Catherine McLellan and their daughter and son-in-law Mona and William Calthorpe, brought suit in 1976 against defendants Manley and Fannie Dyer and Ernest and Jane Abrahamson, praying for declaratory relief with respect to a boundary dispute.

The case was first heard by a referee in the latter part of 1978 and his report, filed on January 4, 1979, found in part for plaintiffs and in part for defendants. The Superior Court order entering judgment and accepting the findings of the referee was the subject of an appeal, Calthorpe v. Abrahamson, Me., 423 A.2d 231 (1980).

On appeal a remand was ordered since the referee's report failed to fix the location of the entire common boundary line of the parties. Following resubmission the referee amended his report to read in full:

Commencing at a bolt in the ledge near the shore of Casco Bay which point is six (6) rods from the southwesterly line of land of Dyer (said point being marked No. 6 on Plaintiff's Exhibit # 6 and on Defendants' Exhibit C); thence north forty-seven degrees, fifty-one minutes west (N 47o 51' W) two hundred sixty and twenty-seven hundredths (260.27) feet to a bolt in the ledge at a point three (3) rods from the southerly corner of land of Abrahamson; thence north thirty-six degrees west (N 36o W) one hundred (100) feet to an iron pin set in the ground; thence on the same course one hundred (100) feet to land now or formerly of one Wesley E. Doughty.

The Superior Court, Cumberland County, granted plaintiffs' motion for acceptance of the referee's report and entered judgment. Defendants appealed and plaintiffs have cross-appealed. The sole issue on appeal is whether the referee erred in determining the location of the boundary between plaintiffs' and defendants' property. ¹ Defendants contend that the referee should have found that the boundary was a straight line running from point 6 to point 5. ² Plaintiffs,

in their cross-appeal, claim that the referee erred in locating the starting point of the boundary at point 6 rather than point 3.

I.

The plaintiffs in this case claim title by a deed dated November 5, 1954, which contains a description as follows in pertinent part: "Bounded on the North by land of Malcolm McIntosh, on the East by land of Cecil Mansfield, on the South by Casco Bay and on the West by land of Manley A. Dyer ...." The deed to plaintiffs' grantor, Mary James, contains the same description and also states that the parcel contains "two acres, more or less, together with the buildings thereon." Plaintiffs trace their title to an 1881 warranty deed which describes the land as two acres, more or less, being what the grantor then lived on. None of the deeds in the chain of title define the boundaries by natural monuments, distances, or courses.

Defendants claim title by a deed dated September 30, 1940, which contains the following description:

Beginning at the Eastern corner of land formerly owned by Stephen Bennett now owned by Sidney Doughty; thence South thirty-six (36) degrees East along an old stone wall to the seashore at a point approximately thirty-six (36) feet Southwest of the side of Casco Bay Wharf; thence Northeasterly by the shore about six (6) rods to a bolt hole in a ledge at the Southerly corner of land of Herbert Doughty; thence North fifty-two (52) degrees West along the line of said Doughty to land of Sidney Doughty; thence South forty (40) degrees thirty (30) minutes West by said Sidney Doughty land to the point of beginning. Said premises are the same which Lizzie Tozier attempted to convey to Kattie C. Westman by deed dated May 1, 1886 and recorded in Cumberland Registry of Deeds in Book 555, Page 238, in which deed appears an error in description so that said lot as therein described appears to be but three (3) rods wide.

Excepting from the above described premises a certain lot and right of way conveyed by Kattie C. Westman to Ida L. Griffin by deed dated July 14, 1900 and recorded in said Registry in Book 703, Page 13.

(emphasis added) The same description is contained in a deed from the heirs of Alonzo Dyer to Manley Dyer and in a deed executed in 1930 from Eben Tozier to Alonzo Dyer. Prior to 1930, the description of the property was substantially different. The parties traced the description to a deed from Stephen Doughty to William Miller, dated November 23, 1864, which read:

bounded beginning at the Eastern corner of land owned by Stephen Bennett, thence South 36o East to the shore, thence North easterly, by the sea shore, about three rods, to a stake and stones, thence South 52o West, to the said Bennett's line thence South 4o 30' West three rods to the point of beginning. ³

(emphasis added) The three rod distance was first deemed erroneous in 1930.

"The cardinal rule in the interpretation and construction of deeds, as in the case of any contract, is to seek to ascertain the intention of the parties." Sargent v. Coolidge, Me., 399 A.2d 1333, 1344 (1979); C Company v. City of Westbrook, Me., 269 A.2d 307, 309 (1970). Construction of the language of a deed is a legal question, and is reviewed as a matter of law. Kinney v. Central Maine Power Co., Me., 403 A.2d 346 (1979). However, the referee's findings of fact as to the location of the boundary will not be disturbed on appeal unless clearly erroneous. Hodgdon v. Campbell, Me., 411

A.2d 667 (1980). This case involves questions of law concerning the intentions of the parties; and questions of fact as to whether the plaintiffs "acquiesced" in the defendants' alleged possession of the parcel.

II.

The dispute concerning the meaning of the deeds centers on the discrepancy in the language defining the distance of the shoreline boundary. Plaintiffs contend that the 1864 deed is accurate, and that the distance on the shore to the northeast mark is therefore three rods. Defendants point out that their source deeds define the course of the northeast line as N 52o W, which, if run from a starting point only three rods from the southeast boundary, would render the deed description meaningless. The corresponding boundary of plaintiffs' parcel is defined only as the "land of Manley Dyer", so the boundaries of both parties' parcels can be established by determining the starting point and location of the Dyers' northeasterly line.

The Superior Court accurately analyzed the legal issue of what the predecessors of the parties intended the distance of the shoreline boundary to be, as ascertained primarily from the language of the relevant deeds, and we affirm the finding that the defendants own only three rods frontage on the water. The Superior Court reasoned as follows:

The record of defendants' title until 1930 clearly and only shows a three rod wide strip. In 1900, Katie Westman, one of defendants' predecessors in title conveyed to Ida L. Griffin ... a lot three rods by 100 feet out of the middle of the premises, leaving a lot on the frontage and a lot on the back of the strip. The Griffin deed also granted a right of way to the shore and reserved a right of way to the back lot. The Griffin deed bounds the lot on the east by one of plaintiffs' predecessors in title. This deed of a part of the premises unequivocally shows the understanding of Katie Westman that this part of her whole lot was a three rod strip, otherwise there was no need to describe the out sale as three rods bounding on the east by plaintiffs' predecessors in title and to grant and reserve rights of way to the two remaining parts. In other words she clearly recognized she needed access to the back lot as there was no remaining land on either side of the out conveyance.

The Griffin lot is now the lot of defendants Abrahamson.... The boundary line found by the referee runs to the southeast corner of this lot from the bolt in the ledge at the shore.

The referee rejected (defendants' claim to a six rod wide lot and plaintiffs' claim that defendant had only a three rod lot) and found the lot to be six rods wide at the shore and the common boundary running back from the shore to the southeast corner of the Griffin lot (now Abrahamson) located three rods from the agreed westerly line of defendants and thence 200 feet northerly, roughly three rods parallel with defendants' west line, to the land of a third party.

I interpret the referee's report as finding that the defendants' lot was in fact a three rod strip....

We hold as a matter of law that the Dyers own a parcel of land which is only three rods wide at the seashore. The fact that in 1930 one of defendant's predecessors' in title, Eben Tozier, unilaterally attempted to increase substantially the size of the lot does not alter our finding. A grantor can convey effectively by deed only that real property which he owns. See May v. Labbe, 114 Me. 374, 96 A. 502 (1916); 6 G. Thompson, Commentaries on the Modern Law of Real Property § 2935 (1962). There is nothing in the record to suggest that Eben Tozier received title to or possessed anything but the three rod strip. Therefore, he could not, simply by the act of drawing up a deed with a new description of the property, convey to his grantee, Alonzo There remains the question of what the boundary is between the plaintiffs' and defendants' property. The Dyer line, which is determinative, begins at a point three rods distant along the shoreline from the southerly boundary of the Dyer's...